By Denver, Colorado Criminal Defense Lawyer – H. Michael Steinberg

This brief article explains the Role Of the Colorado Grand Jury.

The Role Of the Colorado Grand Jury

There are several ways you may become involved with a state grand jury in Colorado. This first is being called to serve as a juror. You will typically serve a twelve month term, but that can be extended to an 18-month term. As a grand juror you will be asked to decide whether a person should be charged with a crime (“indicted”).

The role of a grand jury is to investigate and make recommendations concerning possible criminal offenses and then return charges in the form of an indictment known as a “true bill.”

Secret Investigation Tool

Grand jury proceedings are conducted in private with the jurors, a judge and a prosecuting attorney (typically the District Attorney for a particular district or the state Attorney General). Witnesses can be called and the grand jury has subpoena power (the power to compel a witness to testify or produce evidence). A grand jury can also request an investigator be appointed in order to gather information.

Appearing As A Witness Before The Colorado Grand Jury

The second way you may be involved is as a witness. You could voluntarily come forward or you may have a subpoena to appear or produce information and documents. If this is how you become involved you should be aware of several things.

First, be aware that you have a Constitutional right not to incriminate yourself. Both the Colorado and the United States Constitution provide you with this guarantee under the 5th Amendment of both Constitutions. If you are concerned about your testimony, you may request a lawyer. Your lawyer is allowed to be present during proceedings that involve you (for example during your testimony, or to review documents that you may be required to produce). You may also request immunity for your testimony.

Are You A “Target” Of A Grand Jury Investigation?

Another way you may be involved with a grand jury is as the subject of the investigation– or a suspect to a crime. Know your rights. Do not go into a grand jury proceeding as a suspect without consulting an attorney.

As I stated in the witness section, you have Constitutional rights, even in the face of Subpoenas, Not to Incriminate Yourself. Even if you want to testify to explain that you did not engage in whatever type of behavior the prosecutor and/or grand jury is investigating, consult an attorney first.

Challenges to the Grand Jury Indictment

There are several ways to attack an indictment after it is issued.

Following is a discussion of challenges based on: (1) facial deficiency of the indictment; (2) lack of probable cause supporting the indictment; (3) prosecutorial misconduct during the grand jury proceedings; (4) secrecy violations; and (5) conflict of interest on the part of the prosecutor.

Facial Challenges To The Indictment

An indictment that is facially deficient is subject to a motion to dismiss. It is not difficult for prosecutors to meet these minimal requirements, so it is a rare case in which an indictment is successfully challenged on its face.

CRS § 16-5-201 not only sets forth the specific requirements of an indictment, but also includes a sample form of indictment. Every indictment must name the person charged, specify the date and place of the offense, and state the actual offense alleged. The offense must be stated in terms of the statute defining the offense or in a manner that is easily understood by the jury. Where the indictment uses the conjunctive or disjunctive, the defense is on notice that the prosecution may rely on all or some of the alternatives alleged.

Lack of Probable Cause

In the author’s experience, lack of probable cause supporting an indictment is the most common challenge to a Colorado grand jury indictment. On a motion by the defense, the court must dismiss the indictment if, after reviewing the record of the grand jury proceedings, the court determines that the indictment is not supported by probable cause that the offenses charged were committed by the defendant.

In conducting the probable cause review, the evidence is viewed in the light most favorable to the prosecution. If the testimony conflicts, the court must draw an inference for the prosecution. Only where the trial court failed to follow the rules applicable to preliminary hearings is the probable cause ruling subject to appellate review. It is customary that the judge to whom the criminal case is assigned conducts the probable cause review, not the judge who presided over the grand jury.

Prosecutorial Misconduct

Prosecutorial misconduct during the grand jury proceedings can be a ground for attacks on the indictment. An indictment must be dismissed based on prosecutorial misconduct where the defendant suffers actual prejudice or the misconduct compromises the integrity of the proceedings to such a degree as to allow for the presumption of prejudice. Prejudice exists when the prosecutorial misconduct “substantially influenced the grand jury’s decision to indict.”

Any motion to dismiss for prosecutorial misconduct requires actual or presumed prejudice, which is always difficult to prove. Where misconduct occurs, but specific evidence of prejudice is lacking, the fact of misconduct can alternatively be used to argue that the indictment is not supported by probable cause, as discussed above.

Grand jury proceedings are subject to specific rules, so prosecutorial misconduct can occur in myriad ways. For example, any person may submit a request to the prosecuting attorney that he or she be allowed to testify, re-testify, and appear before the grand jury. The prosecuting attorney is required to keep a record of all denials of such requests and the reason for the denials.

If the prosecutor refused testimony without a valid reason and the offered testimony was potentially exculpatory to the indicted defendant, defense counsel might argue for dismissal based on prejudicial prosecutorial misconduct.

C.R.Crim.P. 6.5 allows the court to appoint a grand jury investigator. However, the investigator is precluded from questioning witnesses or commenting, by word or gesture, on the evidence or witnesses.

In practice, grand jury investigators are usually investigators from the prosecuting attorney’s office or local law enforcement agencies. As agents of the prosecution, any prejudicial conduct that violates Rule 6.5 could be the basis of a motion to dismiss for prosecutorial misconduct.

Reasons for Colorado Grand Jury Secrecy

In the grand jury context, secrecy is necessary to:

• Prevent the escape of those whose indictment may be contemplated

• Ensure the utmost freedom to the grand jury in its deliberations and prevent persons subject to indictment or their friends from importuning the grand jurors

• Prevent subornation of perjury or tampering with witnesses who may testify before the grand jury and later appear at the trial of those it indicts

• Encourage free and untrammeled disclosures by persons who have information regarding the commission of crimes

• Protect innocent persons who are exonerated from disclosure of the fact that they have been under investigation.

Colorado Grand Jury Secrecy Violations

Grand jury secrecy violations also can provide a basis for a claim of prosecutorial misconduct. The rule of secrecy exists for several reasons, as described in the accompanying box. When the prosecutor or his or her agents violate the secrecy requirements of C.R.Crim.P. 6.2, and the defendant can demonstrate prejudice, a motion to dismiss the indictment may be warranted.36

Colorado Selection of Grand Jury

Depending on the stage of the selection process that is challenged, an attack on the discriminatory selection of grand juries may be brought under the Sixth or the Fourteenth Amendment to the U.S. Constitution. The Sixth Amendment requires that the jury pool for a grand jury be selected from a fair cross-section of the population that is served by the court.

To establish a prima facie violation of the fair cross-section requirement, the defendant must show that: (1) the group alleged to be excluded is a distinctive group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this under-representation is due to systematic exclusion of the group in the jury selection process.

After the grand jury is selected, the composition of the seated grand jury can be challenged under the Equal Protection Clause of the Fourteenth Amendment. No person may be excluded from serving as a grand juror because of race, color, religion, sex, national origin, economic status, or occupation.

Discovery Concerning Colorado Grand Jury – The Proceedings

The attacks on grand jury indictments discussed in this article hinge largely on factual determinations. Thus, discovery prior to litigating these attacks is of critical importance. Under the Colorado Rules of Criminal Procedure, the defendant is entitled to limited discovery, including transcripts of the grand jury proceedings and all tangible evidence presented to the grand jury. The prosecution is required to provide the transcripts as soon as practicable, but not more than thirty days after indictment. The tangible evidence must be disclosed thirty days prior to trial. These provisions are self-executing and do not require a motion from the defense.

All other discovery must be specifically requested, and disclosure is within the discretion of the trial court. Counsel requesting discovery should be cognizant of the practice in the particular court regarding whether such discovery requests should be made to the judge assigned to the criminal case, the grand jury judge, or both.

One of the most critical items of discovery is a transcript of the colloquy (everything that happens during a reported grand jury session other than testimony) between the grand jurors and representatives of the prosecution. The transcripts of grand jury proceedings provided pursuant to C.R.Crim.P. 16 typically include only the testimony of witnesses.

To support a lack of probable cause claim, counsel must seek discovery of the transcripts of testimony given before any other proceedings that were referred to or summarized by witness testimony in the grand jury proceeding at issue. Because hearsay is freely admissible before the grand jury, witnesses, especially law enforcement officers, often will refer to testimony given in other proceedings in a summary fashion. This information is the basis, in part, for the probable cause supporting the indictment.

A state grand jury indictment presents unique issues for the prosecutor, the court, and defense counsel. Prosecutors who proceed by indictment must prepare themselves and their indictment for attacks as discussed.

Although it may be easy for a prosecutor to obtain an indictment from the grand jury, protecting the indictment from attack is another matter.

Defense attorneys should aggressively pursue the attacks discussed in this article, beginning with specific discovery requests. It is also essential that defense attorneys who are handling a state criminal case initiated by an indictment become familiar with the procedural requirements for the various types of Colorado grand juries.

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H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277

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